Judge: Armen Tamzarian, Case: 20STP01873, Date: 2024-08-02 Tentative Ruling
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Case Number: 20STP01873 Hearing Date: August 2, 2024 Dept: 52
Respondents
Farhad Eliasi and Elad Benisti’s Motion to Reconsider or Correct Order for
Attorney Fees and Costs
Respondents Farhad Eliasi and Elad Benisti
move for reconsideration of the court’s order awarding petitioner Eyal Raziel
attorney fees and costs against them. In
the alternative, they move the court to correct that order under Code of Civil Procedure
473(d).
Reconsideration
Respondents do not show valid grounds for
reconsideration. A motion for reconsideration must be “based
upon new or different facts, circumstances, or law.” (CCP § 1008(a).) The moving party “shall state by affidavit…
what new or different facts, circumstances, or law are claimed to be
shown.” (Ibid.)
Respondents
do not show diligence as required for reconsideration. The moving party must
show diligence and explain why he or she could not have presented the new or
different facts or law earlier. (California
Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 46; Baldwin
v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200.)
Respondents assert the “different facts
and circumstances” are that petitioner signed Extended Vision, LLC’s operating
agreement, which includes provisions purportedly absolving the individual
respondents of liability for attorney fees or costs. (Motion, pp. 4-5.) The operating agreement was dated June 16,
2009. (Catanzarite Decl., Ex. A, §
1.01.) Respondents make a purely legal
argument based on interpreting the contract from which this entire proceeding
arose. As respondents’ reply brief
acknowledges, “[T]he evidence of the Company's Operating Agreement was
originally submitted to and has been before the Court since the underlying
action commenced.” (Reply, p. 3.) They could have made this argument from the
start. They did not.
As early as December 1, 2021, the
arbitrator expressly found all three respondents were jointly and severally
liable for attorney fees. (Petition to
Confirm Arb. Award, Ex. M, Order Granting in Part Claimant Eyal Raziel’s Motion
for Attorney Fees and Costs.) Respondents
provide no explanation for failing to make this argument earlier in any prior
proceedings, whether in this court, in arbitration, or before the Court of
Appeal. Respondents show no diligence in
raising the contention that Eliasi and Benisti should not be personally liable
for Raziel’s attorney fees. The court
therefore will not reconsider its order.
If the court did reconsider its prior
order, it would reject respondents’ argument on the merits. Respondents rely on three provisions of
Extended Vision, LLC’s operating agreement.
First, section 7.01 provides, “A Manager shall have no personal liability
for the obligations of the Company.” (Catanzarite Decl., Ex. A, § 7.01.) This provision does not apply because the
judgment against Eliasi and Benisti is not just an obligation of the
Company. Raziel brought this proceeding
against Eliasi and Benisti as individuals.
He prevailed against them personally.
They are jointly and severally liable.
Second, section 7.03 of the operating
agreement provides, “The Manager shall not be liable, responsible, or
accountable in damages or otherwise to any Member for any loss or damage
incurred because of any act or omission performed or omitted by the Manager in
good faith on behalf of the Company… .” (Catanzarite
Decl., Ex. A, § 7.03.) Eliasi’s and
Benisti’s obligations to pay Raziel’s attorney fees do not arise from acts
performed on behalf of the company.
Raziel brought a proceeding against them as individuals. They are obligated to pay his attorney fees
pursuant to the operating agreement (id., § 14.14) because Raziel
prevailed against them as individuals.
Third, section 8.02 provides, “[N]o Member
shall be required to make any contribution to the capital of the Company for
the payment of any losses or for any other purposes; nor shall any Member or
shall any Member be responsible or obligated to any third party for any debts
or liabilities of the Company in excess of the sum of that Member’s unpaid
required contributions to the capital of the Company, unrecovered contributions
to the capital of the Company, and share of any undistributed profits of the
Company.” (Catanzarite Decl., Ex. A, §
8.02.) This provision does not apply
because, as discussed above, the judgment against Eliasi and Benisti is not a
debt or liability of the company. It is
against them personally. Even if this
provision applied, respondents do not establish that their obligation exceeds
the amount of their contributions to the company’s capital and share of
undistributed profits.
The operating agreement expressly provides
that, in disputes between members, the prevailing party shall recover attorney
fees from the losing party. Section
14.14 provides, “In any dispute between any Member or Manager and the Company
or between the Members themselves, whether in mediation, arbitration, or
litigation, the prevailing party shall be entitled to recover all reasonable
costs incurred and the losing party shall pay all such reasonable costs,
including, without limitation, attorneys’ fees, mediation costs, arbitration
costs, court costs, appraisal costs, and the cost for all expert witnesses.” (Catanzarite Decl., Ex. A, § 14.14.)
Raziel brought this proceeding against
Extended Vision, LLC, Eliasi, and Benisti.
Raziel, Eliasi, and Benisti are all members of the company. This proceeding is both a dispute between any
member and the company and a dispute between the members themselves: Raziel,
Eliasi, and Benisti. Raziel prevailed in
the proceeding. Eliasi and Benisti are
“losing part[ies]” under the agreement. Raziel
is thus entitled to recover all reasonable costs, including attorney fees, from
them.
Code of Civil Procedure § 473(d)
Respondents
also move the court to “correct” its order. They show no basis for doing so. Code of Civil Procedure 473(d) provides: “The
court may, upon motion of the injured party, or its own motion, correct
clerical mistakes in its judgment or orders as entered, so as to conform to the
judgment or order directed, and may, on motion of either party after notice to
the other party, set aside any void judgment or order.” Respondents do not assert any clerical
mistake. They argue the court’s order
was wrong on the merits—but not void.
That is not a basis for relief under section 473. (See Gilberd v. AC Transit (1995) 32
Cal.App.4th 1494, 1501.)
Petitioner’s Additional Attorney Fees
In his opposition,
petitioner Raziel seeks an additional $6,750 in attorney fees incurred opposing
this motion. When a judgment includes an
award of attorney fees, the prevailing party generally may also recover
attorney fees incurred enforcing the judgment or opposing efforts to avoid
enforcing the judgment. (See CCP §
685.040.) The judgment in this
proceeding includes an award of attorney fees against Eliasi and Benisti. This motion is part of
the “dispute … between the Members themselves.”
(Catanzarite Decl., Ex. A, § 14.14.)
Raziel prevailed in opposing this motion and is entitled to recover reasonable attorney fees pursuant to the operating
agreement. The court finds he reasonably
incurred $6,750 in attorney fees.
(Lowery Decl., ¶¶ 7-9.)
Disposition
Respondents
Farhad Eliasi and Elad Benisti’s motion for reconsideration or to correct the
court’s order is denied.
Petitioner Eyal Raziel shall recover an additional
$6,750 in attorney fees from respondents Farhad Eliasi and Elad Benisti.